However We Transmit This, We Need to Restate Plan A, Which Is for EPA to Defer Proposal

However We Transmit This, We Need to Restate Plan A, Which Is for EPA to Defer Proposal

~ Draft ~

Proposed Rule Language

Review and Handling of Air Quality Monitoring Data Influenced by Exceptional Events

Preamble

Purpose

The purposes of this rule are torequire procedures to protect public health in situations where air quality is adversely affected by natural or exceptional events and to establish procedures to exclude air quality monitoring data affected by natural or exceptional events from regulatory actions related to attainment of national ambient air quality standards (NAAQS), such as non-attainment designations, determination of design value and qualification for a limited maintenance plan.

While this rule addresses procedures to exclude air quality data from regulatory determinations, such as attainment/non-attainment designations and design value calculation in non-attainment areas, unhealthy levels of air quality are a public health concern irrespective of whether the source is anthropogenic and controllable or a natural source. Accordingly, this rule adheres to the following guiding principles:

  • Protection of human health is the highest priority;
  • Timely information should be provided to the public in any case in which the air quality is unhealthy;
  • All ambient air quality data should be available and accessible to the public in a timely manner;
  • Each state must take necessary and appropriate measures to safeguard public health regardless of the source of the air pollution;
  • Emission controls should be applied to sources that contribute to exceedances when the controls will result in fewer exceedances of the standard;
  • Air quality data should be carefully screened to ensure that events not likely to recur are characterized appropriately in all monitoring data and analyses.

Background

  • The rule is needed to ensure that air pollution control strategies are implemented to address sources that are preventable or controllable, not sources for which there are no reasonable controls.
  • The rule applies both to anthropogenic events that are unlikely to recur at a particular location and to recurring and non-recurring natural events where the exceptional event causes or contributes significantly to an elevated pollutant concentration.
  • For purposes of this rule, natural events include any of the following: stratospheric ozone intrusion; volcanic eruptions; earthquakes; wildfires; and wind-generated dust.
  • Natural events do not include meteorological events, such as stagnations and high temperatures, which may affect but do not themselves cause air pollutant concentrations.
  • Include examples where, but for nonrecurring anthropogenic events or natural events, an area would be in attainment; a design value is inflated due to the inclusion of exceptional events; and an example of an area that would fail to qualify for the Limited Maintenance Plan (LMP) option to address a non-attainment area.
  • Acknowledge that there are actions that could be taken to mitigate impacts, and reasonable measures that could be implemented to reduce anthropogenic sources.

Description of rule

  • The rule describes how data is currently used for attainment determinations, design value calculations and LMP qualification.
  • The rule describes how flagged data is retained in the dataset and made available for public review, but is excluded for the purposes in first bullet.
  • The rule describes how it is sometimes clear, and sometimes not so clear, how monitoring data can be impacted by exceptional events.
  • The rule describes a new procedure a State may use to apply an interim flag on data suspected as being an exceptional event, and the documentation and public notification requirements related to interim flags;
  • The rule articulates the circumstances under which data may be flagged as an exceptional event and thus excluded from regulatory determinations; the general criteria EPA will rely upon to evaluate the appropriateness of excluding data, and; the procedural and administrative requirements for EPA review and concurrence.
  • The rule requires States to show a clear causal relationship between an exceptional event and ambient air quality. The rule provides a basic framework and criteria that will be used by EPA to judge the appropriateness of an exceptional events flag, where the complexityof documentation in support of the proposed flag should be proportional to the complexity of the circumstances surrounding the event.
  • The rule notes that EPA will develop national guidance including how the general criteria in the rule will be applied for EPA concurrence with exceptional events flags, and that States and EPA Regional Offices will collaborate on how the rule and guidance will apply in the circumstances likely to be encountered in the State.
  • The rule meets the requirements of revised Clean Air Act section 319 and is consistent with the principles outlined in the Purpose.
  • The rule requires the submission of an exceptional events mitigation action plan (EEMAP) when the state requests an exceptional event flag for a violation of the standard. The EEMAP must include a communications strategy and, as appropriate, mitigation measures.
  • The rule requires EPA to work with the States to develop a dispute resolution process based on technical factors.

Examples of exceptional events

  • The rule distinguishes human-caused events that are unlikely to recur at a particular location and natural events where emission control strategy options are limited in terms of their effectiveness or unreasonable.
  • The preamble should include examples of one-time events; infrequent natural events; and chronic natural events
  • Examples should be provided that show the distinction between types of emissions (volcanic eruptions, earthquakes, wildfires, and wind acting on exposed soils) versus a meteorological events (stagnation, high temps).

Lawyer’s section

  • How statutes are being interpreted to allow for this
  • Transition from existing policies to this rule

Rule Text

1. Purpose

The purpose of this rule is to establish procedures to govern the review and use of air quality monitoring data influenced by exceptional events. Ambient air quality data values that are determined to be caused by exceptional events may be excluded from regulatory determinations, including assessments of an area’s attainment status and the calculation of design values in non-attainment areas. Excluding exceptional events data from regulatory determinations will ensure that requirements to reduce emissions are limited to sources for which reasonable controls exist. The rule also requires States to establish procedures to protect public health in situations where air quality is affected by natural or exceptional events.

2. Definitions

For the purposes of this rule, the following definitions shall apply:

  1. Exceptional event means an event that causes air pollution that cannot be reasonably controlled or prevented, and thatis either non-recurring and anthropogenic, or natural.
  1. Non-recurring anthropogenic event means an exceptional event caused by a source of air pollutionresulting from human activity that is unlikely to recur at a particular location and that significantly impacts ambient air quality.
  1. Natural event means an exceptional event caused by a naturally occurringsourceof air pollution that significantly impacts ambient air quality. Natural events may recur at a particular location or may be one-time events.
  1. Interim exceptional events flagmeans a preliminary flag in addition to the general data provider flag that is placed on data by a State based upon reasonable evidence that an exceptional event impact has occurred. This flag acts as a placeholder pending a determination by the State that an event needs to be formally documented to exclude the use of the data in regulatory determinations through the exceptional events process.
  1. Exceptional events flagmeans that EPA has concurred with State documentation of an exceptional event and placed a concurring EPA flag on the air quality data.
  1. Clear causal relationship meansthe demonstration that an exceptional event caused or significantly contributed to an elevated measured air quality value.The weight of evidence needed to establish the relationship between the event and ambient air quality depends on the complexity of the circumstances of the event.
  1. Exceptional events mitigation action plan (EEMAP) means an action plan developed by the State that sets forth a State’s strategy for communicating withthe public about an event and about protection of public health, and defines reasonable and appropriate mitigation measures to control emissions.
  1. Reasonably available control measures (RACM)if EPA uses this phrase in the rule, it needs to be defined
  1. Regulatory determinationmeans any of the following actions: an attainment/non-attainment assessment; calculation of a design value to be used in an attainment or maintenance plan; or, the determination of a state’s eligibility for the Limited Maintenance Plan option to address a non-attainment area.

3. Applicability

  1. This rule shall apply to all regulated forms of particulate matter upon the effective date of this rule.
  1. <reserved>

4. Criteria and procedures to flag exceptional events

  1. Data handling procedures, including procedures related to flagging data, are contained in <reference to applicable CFR and/or appendix>.
  1. A State may apply an interim exceptional events flag on ambient air quality data pending its determination of the need to excludethe data in a regulatory determination.

1)Interim exceptional events flags are not used to exclude data from regulatory determinations and therefore do not require EPA concurrence.

2)All air quality data must be submitted to EPA on a timely basis as delineated in <CFR and Appendix reference> including data on which a State applies an interim exceptional events flag.

3)A State must document, and make available to the public upon request, the basis for their application of an interim exceptional events flag.

  1. A State may propose, for EPA concurrence, an exceptional events flag for data affected by an exceptional event. Air quality data will be excluded from regulatory determinations when the data is flagged as an exceptional event. EPA will concur with a State proposal for an exceptional events flagas follows:
  1. A State must submit a request for an exceptional events flag no later than when the State intends to exclude the data in a regulatory determination.
  1. Public process and notification requirements <reserved for further discussion with EPA>
  1. EPA will evaluate a State’s request for concurrence of an exceptional events flag to determine if the following criteria have been met:
  1. The data in question meets the definition of an exceptional event.
  1. The State has provided documentation showing a clear causal relationship between the event and the elevated air quality data. The complexity of the documentation needed to establish a clear causal relationshipwill depend on the complexity of the circumstances of the event.
  1. EPA will respond to a State’s request for an exceptional events flag within 60 days of receipt of the request, either concurring with the request or explaining the reasons for non-concurrence.
  1. Exceptional Events Mitigation Action Plan (EEMAP)
  1. The State must submit an EEMAP to EPA as soon as practical, but in no case more than 18 months after the State requests an exceptional event flag for a violation of the NAAQS.
  2. Contents of an EEMAP

1)The EEMAP must include a strategy for communicating with the public about an event and informing the public about ways to protect their health.

  1. The communications strategy may accommodate the type of the exceptional eventand source(s) of emissions.
  2. The communications strategy should accommodate rural-urban differences including but not limited to availability of real-time air quality data and means of communication.

2)The EEMAP must include mitigation measures for contributing sources where the emission controls will result in fewer exceedances of the standard.

  1. If the exceptional event is a nonrecurring anthropogenic event, mitigation measures may not be necessary or appropriate.
  2. If the event is a natural event that is not likely to recur, mitigation measures may not be necessary or appropriate.
  3. If the event is a natural event that is likely to recur, then the State should implement control measures on appropriate sources as set forth in section b. 2) D. below.
  4. RACM or BACM <reserved for further discussion with EPA>

6.Guidance related to documentation of exceptional events

  1. EPA shall collaborate with the States to issue national guidance on ways a State may establish a clear causal relationship between an exceptional event and resulting air quality impacts. The guidance will be implemented consistently from region to region and State to State. The guidance must accommodate rural-urban differences in data availability and public outreach. The guidance should show States how to provide documentation in support of an exceptional events flag that is simple, technically sound and, to the extent possible, based on readily available information.
  1. The documentation guidance will illustrate different approaches a State may take to establish the relationship between an exceptional event and ambient air quality, and circumstances under which simple versus complex demonstrations are needed.
  1. EPA regional offices shall work with the States within their region to develop criteria for appropriate documentation based on the national guidance.

7.Dispute resolution process

  1. A review committee composed of experts in scientific fields associated with meteorology and air pollution should be established to facilitate dispute resolutions.
  1. Disputes should be resolved based on technical merit alone.

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Draft Rule Text based on WESTAR Recommendations

November 10, 2005

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